Mistrial declared after tape is played State says recording was obtained illegally

March 08, 1996|By Amy L. Miller | Amy L. Miller,SUN STAFF

A Carroll County circuit judge declared a mistrial yesterday in an attempted murder case because defense attorneys played an illegally obtained tape recording in front of the jury.

The tape -- a loud, angry phone conversation between Richard Seater "Scott" Craigie and his wife, Patricia -- was recorded last summer through the wall that divided the Craigies' apartment from the home of their landlords, Philip Stephen Malpas and Barbara Van Rossum.

A few days later, Mr. Malpas was charged with attempted murder, assault with intent to murder and related charges after Mr. Craigie was shot in the back during an argument about a dinette set Ms. Van Rossum was holding as collateral for an unpaid utility bill.

During Mr. Malpas' trial this week, his attorney, former Carroll County State's Attorney Thomas E. Hickman, tried to use his client's tape to show that Mr. Craigie had a violent temper, thereby giving the defendant reason to be afraid of him.

Mr. Hickman had been arguing that Mr. Malpas was defending himself and the apartment in the 1600 block of Sams Creek Road when he shot Mr. Craigie was shot Aug. 8.

However, in an informal opinion submitted Wednesday, the Maryland attorney general's office advised that Mr. Malpas' recording of his tenant's phone conversation was prohibited under the state's wiretapping statutes.

"Furthermore neither the contents of any intercepted oral communication nor any evidence derived from it may be received in evidence in any trial or official proceeding," wrote Deputy Attorney General Carmen M. Shepard.

Therefore, If the tape was used in the trial and Mr. Malpas was convicted, the decision likely would be overturned in an appeal to the Maryland Court of Appeals, Deputy State's Attorney Martha Ann Sitterding argued yesterday.

"Four days out of my life, the jurors' lives, all of our lives, have been lost and cannot be returned," Judge Raymond E. Beck Sr. said yesterday. "For that reason, it is with a great deal of regret that I grant the state's motion."

Ms. Sitterding, who said the state will schedule another trial for Mr. Malpas, agreed with Judge Beck's decision yesterday.

"The court made the only decision it possibly could," Ms. Sitterding said. "The decision was made when Mr. Hickman pushed the button [on the tape recorder]."

Mr. Hickman, however, still contended that the tape was made legally, arguing that Mr. Craigie couldn't expect any privacy because he was yelling during the phone conversation with his wife.

"We think that it's a really close call whether this was in any way an oral interception," Mr. Hickman said after Judge Beck declared the mistrial. "There is no case that we know of that deals with this exact set of circumstances. We're very disappointed from that aspect."

Yesterday's formal motion was the third time that Ms. Sitterding had asked for a mistrial since the tape was played during Mr. Hickman's cross-examination of Mr. Craigie on Tuesday.

At that time, Mr. Hickman -- who played the tape without any explanation about where it came from -- argued that he merely wanted to use the recording to prove that Mr. Craigie was lying when he said he rarely used certain obscenities while speaking to his wife.

Although Judge Beck denied Tuesday's motion for a mistrial, he did reprimand Mr. Hickman for suddenly playing the tape -- a copy of the original recording Mr. Malpas had made in his home -- without explaining its significance. "How do we know [the tape] wasn't taken out of context?" Judge Beck said Tuesday after he sent the jury to lunch. "How do we know you didn't audit it, edit it or speed it up?"